# State of U.P. & Ors v. C/M, Seth Jaipuriya School, Lko

- **Citation:** (2023) 1 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-22
- **Case number:** Special Appeal Defective No. 5 of 2023
- **Bench:** Ramesh Sinha, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-c-m-seth-jaipuriya-school-lko-49584
- **Pages:** 6

## Headnote

A. Procedural Law - Special Appeal -
Delay - Condonation - Principle of
adopting liberal approach - Applicability
- Held, unless there is a specific statutory
provision restricting the powers of the
Court to condone delay, the court should
adopt
a
liberal
approach
while
scrutinizing the sufficiency of the cause
shown for the delay and adoption of a
strict standard of proof in case of the
Government, which is dependent on the
actions of its officials, who often do not
have
any
personal
interest
in
its
transactions,
may
lead
to
grave
miscarriage of justice and therefore,
certain amount of latitude is permissible
to the St. in such cases. (Para 17)

Delay in filing Special Appeal condoned.
(E-1)

List of Cases cited:

## Text

1 All. State of U.P. & Ors. Vs. C/M, Seth Jaipuriya School, Lko
127
Hon'ble The Chief Justice for being
placed before a larger Bench.
----------
(2023) 1 ILRA 127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 5 of 2023

State of U.P. & Ors. ...Appellants
Versus
C/M, Seth Jaipuriya School, Lko
 ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Som Kartik Shukla, Ashok Kumar Singh

A. Procedural Law - Special Appeal -
Delay - Condonation - Principle of
adopting liberal approach - Applicability
- Held, unless there is a specific statutory
provision restricting the powers of the
Court to condone delay, the court should
adopt
a
liberal
approach
while
scrutinizing the sufficiency of the cause
shown for the delay and adoption of a
strict standard of proof in case of the
Government, which is dependent on the
actions of its officials, who often do not
have
any
personal
interest
in
its
transactions,
may
lead
to
grave
miscarriage of justice and therefore,
certain amount of latitude is permissible
to the St. in such cases. (Para 17)

Delay in filing Special Appeal condoned.
(E-1)

List of Cases cited:

1. Indian Oil Corp. Ltd.& ors. Vs Subrata Borah
Chowlek & anr., 2010 14 SCC 419
2. Esha Bhattacharjee Vs Mg. Committee of
Raghunathpur Nafar, 2013 12 SCC 649

3. National Spot Exchange Ltd. Vs Anil Kohli,
2021 SCC OnLine SC 716

4. St. of M.P. Vs Bherulal, 2020 10 SCC 654

5. St. of U.P. Vs Sabha Narain, 2022 9 SCC 266

6. U.O.I. Vs Vishnu Aroma Pouching (P) Ltd.;
2022 9 SCC 263

7. National Spot Exchange Ltd. Vs Anil Kohli,
Resolution Professional For Dunar Foods Ltd.;
2021 SCC OnLine SC 716

8. St. of M.P. Vs Bherulal; (2020) 10 SCC 654

9. St. of U.P. Vs Sabha Narain; (2022) 9 SCC
266

10. U.O.I. Vs Vishnu Aroma Pouching (P) Ltd.;
(2022) 9 SCC 263

11. Antiyur Town Panchayat Vs G. Arumugam;
(2015) 3 SCC 569

12. Indian Oil Corpn. Ltd. VsS ubrata Borah
Chowlek; (2010) 14 SCC 419

13. Esha Bhattacharjee Vs Raghunathpur Nafar
Academy; (2013) 12 SCC 649

(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Subhash Vidyarthi, J.)

C.M. Application No.1 of 2023
(Application for Condonation of Delay)

1. Heard Shri Amitabh Kumar Rai,
learned Additional Chief Standing Counsel
for State-appellant and Shri Prashant
Chandra, learned Senior Advocate assisted
by Shri Anshuman Singh, learned counsel
for the respondent.

2. By means of the instant application,
the appellant- State of U.P. is seeking
128 INDIAN LAW REPORTS ALLAHABAD SERIES
condonation of delay of 65 days in filing
the special appeal.

3. In the affidavit filed in support of
the application filed for condonation of
delay, it has been stated that by means of
the order dated 27.09.2022 passed by
learned Single Judge in Writ C No.522 of
2022, the appellants were directed to grant
No-Objection Certificate for admission
sought by the respondent within a period of
two months. A copy of the judgment and
order dated 27.09.2022 passed in Writ-C
No.522 of 2022 was served by Manager of
the respondent/ School, along with its
representation
dated
12.10.2022.
On
05.11.2022, a meeting of the designated
Regional Committee was held and after due
deliberation, it was decided to file a special
appeal challenging the judgment and order
dated 27.09.2022. On 05.11.2022 itself, a
letter was sent to the State Government as
well as to the Chief Standing Counsel of
the State Government for giving his legal
opinion. The Chief Standing Counsel gave
his opinion by means of letter dated
18.11.2022, which was received in the
Office of Joint Director, Education on
23.11.2022. Joint Director forwarded the
letter on the same date to the State
Government seeking permission to file
special appeal.

4. The affidavit further stated that on
08.11.2022, the State Government sought
details
from
the
Director
Education
(Secondary), U.P. regarding the grounds
and basis for challenging the judgment and
order dated 27.09.2022. The Joint Director,
Education replied to the aforesaid letter on
the next following day, i.e., 09.12.2022. On
21.12.2022, the State Government granted
permission for filing the Special Appeal
and a letter was sent to the Chief Standing
Counsel for preparation of the special
appeal. On 23.12.2022, the file was allotted
to one of the State Government Counsel for
preparation of the special appeal and
thereafter it was filed on 02.01.2023, that
is, on the next following working day.

5. The respondents has filed a counter
affidavit in response to the application for
condonation
of
delay.
Shri
Prashant
Chandra,
learned
Senior
Advocate
appearing for the respondents has drawn
our attention to the submissions made in
the paragraph nos.8 and 9 of the counter
affidavit, wherein it has been stated that
filing of the special appeal is not advancing
the cause of substantial justice but giving
vent to the personal grudge of the Joint
Director, Education; that the law of
limitation is to be adhered to by all and the
State
Government
cannot
claim
any
privilege as it is not above the law.

6. The State-appellant has relied upon
the decisions in the cases of Indian Oil
Corp. Ltd. and others vs. Subrata Borah
Chowlek and another, 2010 14 SCC 419,
Esha Bhattacharjee vs. Mg. Committee
of Raghunathpur Nafar, 2013 12 SCC
649.

7. Shri Prashant Chandra, learned
Senior Advocate has placed reliance on the
judgments rendered in the case of National
Spot Exchange Limited vs. Anil Kohli,
2021 SCC OnLine SC 716, State of M.P.
vs. Bherulal, 2020 10 SCC 654, State of
U.P. vs. Sabha Narain, 2022 9 SCC 266
and Union of India vs. Vishnu Aroma
Pouching (P) Ltd., 2022 9 SCC 263.

8. The appellant has filed a rejoinder
affidavit giving the detailed particulars of
the facts pleaded in the affidavit filed in
support of the application filed for
condonation of delay in filing the appeal
1 All. State of U.P. & Ors. Vs. C/M, Seth Jaipuriya School, Lko
129
and copies of the relevant documents have
been annexed in the rejoinder affidavit.

9. We have considered the facts,
circumstances of the case, submissions
made and the pleadings rendered upon by
learned counsel for the parties.

10. National Spot Exchange Limited
Versus Anil Kohli, Resolution Professional
For Dunar Foods Limited 2021 SCC
OnLine SC 716 was a case arising out of
rejection of an application for condonation of
delay in an appeal filed under the Insolvency
and Bankruptcy Code, and Section 61(2) of
the Code provides the limitation for filing an
appeal to be 30 days and the Appellate
Tribunal has been given the power to
condone the delay of only 15 days over the
period of 30 days, if there is a sufficient
cause. Beyond the period of 15 days, over the
period of 30 days, the Appellate Tribunal has
no jurisdiction to condone the delay. The case
was decided in this factual and legal
background whereas in the present case, there
is no limit on the power of this Court to
condone the delay in filing the Special
Appeal.

11. In State of M.P. v. Bherulal,
(2020) 10 SCC 654, The special leave
petition had been filed with a delay of 663
days and the reason for the delay was stated
to be only "due to unavailability of the
documents and the process of arranging the
documents" and it was also stated that
"bureaucratic
process
works,
it
is
inadvertent that delay occurs". In the
aforesaid background the Hon'ble Supreme
Court imposed a cost of Rs.25,000/- and
ordered the same to be recovered from the
officers responsible.

12. In State of U.P. v. Sabha Narain,
(2022) 9 SCC 266, the special leave
petition had been filed with a delay of 502
days and the Court found that the petitioner
had acted in a casual manner, without any
cogent or plausible ground for condonation
of delay. The Supreme Court even observed
that "In fact, other than the lethargy and
incompetence of the petitioner, there is
nothing which has been put on record." Yet
the Hon'ble Supreme Court condoned the
delay by imposing a cost of Rs. 25,000/-.

13. In Union of India v. Vishnu
Aroma Pouching (P) Ltd., (2022) 9 SCC
263 also, the Hon'ble Supreme Court found
that "there is no reason to condone the
delay.
The
Hon'ble
Supreme
Court
expressed the view that "such kind of
lethargy on the part of the Revenue
Department with so much computerisation
having
been
achieved
is
no
more
acceptable." Yet the Hon'ble Supreme
Court condoned the delay after imposing a
cost of Rs.25,000/-.

14. In Antiyur Town Panchayat v.
G. Arumugam, (2015) 3 SCC 569, the
High Court had condoned a delay of 1373
days in filing the appeal and this order was
challenged before the Hon'ble Supreme
Court. The Hon'ble Supreme Court held as
follows: -

"we are satisfied that the delay
occasioned only on
account of
the
deliberate lapses on the part of the
Executive Officer of the Panchayat at the
relevant time. Who else are involved in the
process, is not quite clear.

4. As held by this Court in State
of Nagaland v. Lipok Ao (2005) 3 SCC 752,
the court must always take a justiceoriented approach while considering an
application for condonation of delay. If the
court is convinced that there had been an
attempt on the part of the government
130 INDIAN LAW REPORTS ALLAHABAD SERIES
officials or public servants to defeat justice
by causing delay, the court, in view of the
larger public interest, should take a lenient
view in such situations, condone the delay,
howsoever huge may be the delay, and have
the matter decided on merits."

15. In Indian Oil Corpn. Ltd. v.
Subrata Borah Chowlek, (2010) 14 SCC
419, the Hon'ble Supreme Court held that: -

"10. It is manifest that though
Section 5 of the Limitation Act, 1963
envisages the explanation of delay to the
satisfaction of the court, and makes no
distinction between the State and the
citizen, nonetheless adoption of a strict
standard
of
proof
in
case
of
the
Government, which is dependent on the
actions of its officials, who often do not
have
any
personal
interest
in
its
transactions,
may
lead
to
grave
miscarriage of justice and therefore,
certain amount of latitude is permissible in
such cases."

16. In Esha Bhattacharjee v.
Raghunathpur Nafar Academy, (2013)
12 SCC 649, after taking into consideration
various earlier pronouncements on the
subject, the Hon'ble Supreme Court culled
the following broad principles: -

"21.1. (i) There should be a
liberal, pragmatic, justice-oriented, nonpedantic approach while dealing with an
application for condonation of delay, for
the courts are not supposed to legalise
injustice but are obliged to remove
injustice.

21.2. (ii) The terms "sufficient
cause" should be understood in their
proper spirit, philosophy and purpose
regard being had to the fact that these
terms are basically elastic and are to be
applied in proper perspective to the
obtaining fact-situation.

21.3. (iii) Substantial justice
being paramount and pivotal the technical
considerations should not be given undue
and uncalled for emphasis.

21.4. (iv) No presumption can be
attached to deliberate causation of delay
but, gross negligence on the part of the
counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides
imputable to a party seeking condonation
of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind
that adherence to strict proof should not
affect public justice and cause public
mischief because the courts are required to
be vigilant so that in the ultimate eventuate
there is no real failure of justice.

21.7. (vii) The concept of liberal
approach has to encapsulate the conception
of reasonableness and it cannot be allowed
a totally unfettered free play.

21.8. (viii) There is a distinction
between inordinate delay and a delay of
short duration or few days, for to the
former doctrine of prejudice is attracted
whereas to the latter it may not be
attracted. That apart, the first one warrants
strict approach whereas the second calls
for a liberal delineation.

21.9. (ix) The conduct, behaviour
and attitude of a party relating to its
inaction or negligence are relevant factors
to be taken into consideration. It is so as
the fundamental principle is that the courts
are required to weigh the scale of balance
of justice in respect of both parties and the
said principle cannot be given a total go by
in the name of liberal approach.

21.10. (x) If the explanation
offered is concocted or the grounds urged
in the application are fanciful, the courts
should be vigilant not to expose the other
side unnecessarily to face such a litigation.
1 All. State of U.P. & Ors. Vs. C/M, Seth Jaipuriya School, Lko
131

21.11. (xi) It is to be borne in
mind that no one gets away with fraud,
misrepresentation
or
interpolation
by
taking recourse to the technicalities of law
of limitation.

21.12. (xii) The entire gamut of
facts are to be carefully scrutinised and the
approach should be based on the paradigm
of judicial discretion which is founded on
objective reasoning and not on individual
perception.

21.13. (xiii) The State or a public
body or an entity representing a collective
cause should be given some acceptable
latitude.

22. To the aforesaid principles we
may add some more guidelines taking note
of the present day scenario. They are:

22.1. (a) An application for
condonation of delay should be drafted
with careful concern and not in a
haphazard manner harbouring the notion
that the courts are required to condone
delay on the bedrock of the principle that
adjudication of a lis on merits is seminal to
justice dispensation system.

22.2. (b) An application for
condonation of delay should not be dealt
with in a routine manner on the base of
individual philosophy which is basically
subjective.

22.3. (c) Though no precise
formula can be laid down regard being had
to the concept of judicial discretion, yet a
conscious effort for achieving consistency
and collegiality of the adjudicatory system
should be made as that is the ultimate
institutional motto.

22.4. (d) The increasing tendency
to perceive delay as a non-serious matter
and, hence, lackadaisical propensity can be
exhibited in a nonchalant manner requires
to be curbed, of course, within legal
parameters."

(Emphasis supplied)

17. From a persual of the aforesaid
decisions of the Hon'ble Supreme Court, the
principle governing condonation of delay is
that unless there is a specific statutory
provision restricting the powers of the Court
to condone delay, the court should adopt a
liberal approach while scrutinizing the
sufficiency of the cause shown for the delay
and adoption of a strict standard of proof in
case of the Government, which is dependent
on the actions of its officials, who often do
not have any personal interest in its
transactions, may lead to grave miscarriage of
justice and therefore, certain amount of
latitude is permissible to the State in such
cases.

18. Examining the facts of the present
case in light of the relevant law on the point
as discussed above, it appears that there is a
delay of 65 days in filing the Special
Appeal, which cannot be said to be an
''inordindate delay'. The facts pleaded in the
affidavit filed in support of the affidavit
filed in support of the application for delay,
which have been extracted in paras 3 and 4
of this order, make out a sufficient cause
for condoning the delay in filing the
Special Appeal.

19. In view of the aforesaid
discussion, the delay in filing the Special
Appeal is hereby condoned and the office is
directed to allot a regular Number to the
Special Appeal.

20. The learned counsel for the
appellant has submitted that a contempt
petition has been filed for disobedience of
the order dated 27.09.2020 passed in Writ
C No. 522 of 2022, which is under
challenge in the Special Appeal.

21. As the validity of the order is
being examined in this Special Appeal, to
132 INDIAN LAW REPORTS ALLAHABAD SERIES
secure the interests of justice it is provided
that further proceedings of the contempt
case arising out of the order dated
27.09.2020 passed in Writ C No. 522 of
2022, shall remain stayed till the pendency
of the appeal.

22. Office is directed to allot regular
number.

23. List the appeal for final disposal
on 22.02.2023.
----------
(2023) 1 ILRA 132
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.01.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ A No. 23384 of 2020

Dr. Priyanka Garg ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for thePetitioner:
Gaurav Mehrotra, Abhineet Jaiswal

Counsel for the Respondents:
C.S.C.

A. Service Law - Right of resignation -
Petitioner, an Associate Professor, being
mother claimed the child care leave and
medical leave - It was neither sanctioned
nor
salary
was
paid
-
Resignation
tendered by the petitioner was rejected on
the ground of public interest - Disciplinary
proceeding
also
initiated
-
Validity
challenged - Held, the petitioner had a
right to resign on 24.02.2020 and her
resignation had to be accepted as till that
date neither any departmental inquiry was
initiated against her nor there was any
other reason available to the respondents
for not accepting the resignation - High
Court directed the respondent to treat the
petitioner to be in service till 24.02.2020.
(Para 9 and 13)
Writ petition allowed. (E-1)
List of Cases cited:

1. Writ A No. 4813 of 2021; Dr. Sonal Sachadev
Aurora Vs St. of U.P. & ors. decided on
08.03.2022
(Delivered by Hon'ble Vivek Chaudhary, J.)

1.

Heard
learned
counsel
for
petitioner Sri Gaurav Mehrotra & Sri
Abhinit Jaiswal and learned Standing
Counsel for the State.

2. Despite the best efforts of all still,
how a working woman can be harassed
even in this era is reflected in the facts of
the present case. Petitioner, a doctor by
qualification, after getting selected by U.P.
Public Service Commission, in furtherance
of appointment letter dated 01.09.2010,
joined as a lecturer at the Lala Lajpat Rai
Memorial Medical College, Meerut & was
subsequently promoted to the post of
Associate Professor. On 19.09.2018, the
petitioner was transferred from Meerut
Medical College to Saharanpur Medical
College.
Though
the
petitioner
has
challenged the aforesaid transfer order, it
could not succeed. Meanwhile, the State
Government made an arrangement vide
Office Memorandum dated 19.07.2019
whereby the petitioner along with some
other Doctors were directed to render their
services at Saharanpur Medical College
along with the previous place of posting of
petitioner i.e., Meerut Medical College.

3. The petitioner by means of several
applications expressed her difficulty in
rendering the services & sought child-care
leave on account of medical issue of her